Michael Hersey received $42,244.88 from a client in 2009 to hold in trust as part of a divorce case, according to a petition for discipline filed with the stipulation. Instead, he converted at least $25,295 of the funds to his own use, according to the petition.

Town councilor in legal trouble

By PATRICK CASSIDY

pcassidy@capecodonline.com

December 08, 2012 - 2:00 AM

HYANNIS — Barnstable Town Councilor Michael Hersey is facing suspension from the Massachusetts bar for violations of the rules of professional conduct for lawyers, including a claim that he mixed more than $25,000 of client funds with his own money.

Hersey, 48, who was elected to the town council a year ago from Precinct 3, agreed to a stipulation filed last week with the Board of Bar Overseers counsel that calls for an indefinite suspension based on the allegations.

The recommendation is based on violations that include improper accounting, co-mingling client and personal funds, failure to communicate with a client and failing to respond to information requests from the bar, according to documents filed with the state panel.

The board will decide Monday whether to accept or reject the recommendation, bar general counsel Michael Fredrickson said Friday.

An indefinite suspension lasts for at least five years, Fredrickson said.

After five years the lawyer can petition for reinstatement, he said.

These types of actions against attorneys are rare, Fredrickson said.

The Board of Bar Overseers is an independent administrative body established by the Supreme Judicial Court to investigate and evaluate complaints against lawyers, according to its website.

Hersey received $42,244.88 from a client in 2009 to hold in trust as part of a divorce case, according to a petition for discipline filed with the stipulation. Instead, he converted at least $25,295 of the funds to his own use, according to the petition.

Although he eventually distributed various amounts of the funds to his client, those payments were about $3,100 short of the total funds in trust. A $17,500 check Hersey sent to his client's ex-wife bounced, according to the petition.

In addition, he did not respond to his client's phone calls, according to the petition.

The bounced check triggered an automatic notification of the bar counsel.

As soon as he was notified that the check bounced, he sent another one, Hersey said Friday.

Although he believes the $3,100 was owed to him for travel expenses, Hersey said he paid it back as part of the stipulation.

Despite several attempts to contact Hersey about the money, the client — who asked that his name not be used in this story — said he was able to get him on the phone only once, adding that he told the lawyer at the time that he would file a complaint if he didn't have all of his money back in 24 hours.

"His only response was that he spent it," he said.

It was only about four months ago that the final $3,100 was returned, the man said.

"I made a mistake," Hersey said. "I did a bad job segregating my client's funds. I own that. I'm taking a very big hit for that."

He could have asked for a hearing in the matter but decided that doing so might cost him $15,000 to $20,000 and end with the same result, Hersey said.

He shut down his practice this summer on advice from his attorney, Hersey said, adding that he plans to find another job while his license to practice law is suspended.

"I'm working on getting my Coast Guard license back," he said, adding that he was previously a ferry boat captain for 14 years.

Town councilors, except for the council president and vice president, receive a base salary of $8,000 per year.

The likely censure from the Board of Bar Overseers should not have any effect on his job as a town councilor, Hersey said. "I think I'm doing a good job as a councilor," he said.

"This was years before I got elected."

Hersey easily won a three-way race for town council in 2011, beating out incumbent James F. Munafo Jr. and fellow challenger Ryan Richardson for the Precinct 3 seat.

There is no provision in the town's charter that requires him to step down because of a finding by the Board of Bar Overseers, Barnstable Town Clerk Linda Hutchenrider said.

Newly minted Town Council President Debra Dagwan said she had not heard about Hersey's problem until contacted for this story Friday.